EEOC Buries the Bombs

February 22nd, 2019

Robin Shea, partner with leading national labor and employment law firm (and ThinkHR strategic employment law partner) Constangy, Brooks, Smith & Prophete, LLP, gives a rundown of the proposed EEOC regulations issued on February 22, 2019. (There is more to them than meets the eye.)

I see some bombs tucked away in there.

The U.S. Equal Employment Opportunity Commission (EEOC) issued proposed regulations that were published in today’s Federal Register. If you read only the EEOC’s press release, you’ll think the proposed regulations are uncontroversial and, for the most part, simply make “official” what the agency has been doing for years.

But there is more to the actual proposal, and two provisions that seem pretty bad for employers.

The Boring Stuff First

First, the regulations formally acknowledge that submission of information and documents, and communications between the agency, charging parties, and employers can be made electronically or digitally. *yawn*

Second, the regulations clarify that even if the agency issues a “no cause” determination, that doesn’t mean the employer “won.” The EEOC proposes cosmetic changes to the wording on its Dismissal and Notice of Rights form that the agency thinks will make this point more clear. *zzzzzzz*

Where am I!?

Sorry! I must have dozed off. I prefer the current language, but that’s based on my sense of literary style, not anything substantive.

And “no cause” doesn’t mean “employer wins”? Of course it doesn’t. All a “no cause” determination means is that the EEOC will issue a dismissal and notice of rights. The person who filed the charge still has 90 days from receipt of the notice to file suit alleging discrimination based on the allegations in the charge, and many will do so.

More Interesting

The proposed regulations would also clarify the time for filing a charge in “deferral” states. When a state has its own fair employment practices agency, the individual gets 300 days to file a charge instead of the usual 180 days.

Under the proposed regulations, the individual in a deferral state would get only 180 days to file a charge if the state fair employment practices statute didn’t apply to the type of discrimination being alleged. For example, if the state statute doesn’t prohibit discrimination based on religion, then an employee filing a religious discrimination charge in that state would have to file it within 180 days, not 300 days.

On the other hand, if the statute covers the general category of discrimination being claimed by the individual (e.g., religious discrimination) but the individual alleges a specific violation that is not recognized under the state statute (e.g., religious accommodation), then the individual would still get the full 300 days to file a charge on the theory that law is hard for lay persons, and he or she was at least in the ballpark.

I assume this change would mean that if a state statute prohibits sex discrimination but not discrimination based on sexual orientation or gender identity, and if the individual files a charge alleging discrimination based on sexual orientation or gender identity, the EEOC would say the individual had 300 days to file the charge because, in the EEOC’s view, discrimination based on sexual orientation or gender identity is a form of sex discrimination.

(For employers in deferral states, this proposed clarification would probably be helpful.)

The Bombs

In addition to these changes, the EEOC’s proposed regulations have a couple of bombs. These are not mentioned in the EEOC’s press release.

The EEOC would be allowed on its own to “reconsider” a no-cause finding. The proposed regulations would allow the Commission, or the Director of the EEOC office that issued the original determination, to decide on their own to “reconsider” a determination of no cause. This could be done even if the 90-day period for filing suit had already expired. (If the 90-day period is still running, the issuance of a notice of reconsideration would temporarily “revoke” the individual’s right to sue. If the 90-day period is over, or if the individual has already filed suit or taken other specified actions, the right to sue would not be revoked, but the no-cause determination would be vacated.) Once the EEOC issued a re-determination, it would issue a notice to the parties, and if the right to sue had been “revoked,” a new 90-day period for filing suit would start running from the individual’s receipt of the new notice.

There is no provision in the proposed regulations for the parties to submit additional information, documents, or arguments during the reconsideration period.

(I don’t like this proposal.)

Names of charging parties in age cases could be withheld from the employer. There is no reference to this in the EEOC’s press release, and I can’t even find a reference in the preamble to the proposed regulations. But the agency appears to have added a completely new provision saying that age discrimination charges can be filed by someone acting on behalf of the aggrieved party, and that the name of that individual does not have to be on the charge. Although the individual’s name does have to be provided to the EEOC (just not on the charge itself), and can be shared with other governmental agencies, the individual can ask to remain anonymous, and there is nothing saying that his or her name has to be, or will ever be, disclosed to the employer.

(If this is not a mistake, I hate it. Am I missing something? At the very least, I’d like to hear a rationale.)

Can the EEOC Do This?

Even though the EEOC doesn’t have a quorum right now, the proposed regulations were approved on December 4, 2018, when they still had one — consisting of three Obama appointees and two vacant slots. (We still don’t have a single Trump nominee who has been confirmed.) The proposal passed unanimously, according to the EEOC’s press release.